Constitutional Recognition

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2 We begin this presentation by acknowledging the Traditional Owners of the Lands and Waters here where we are gathered and Elders past and present.

3 What is the Constitution?The Australian Constitution is the foundation of Australia’s legal and political system. It is the set of rules by which Australia is governed.

4 Why is the Constitution important?The Constitution sets out the powers of the 3 branches of government: the Parliament, the Executive and the Courts.

5 How Can the Constitution be Changed?Only the people of Australia can change the Constitution through what is known as a referendum.Only the people of Australia can change the Constitution through what is known as a referendum.

6 ReferendumTo be successful a referendum must receive a double majority.A double majority means that1) The majority of Australian voters across all States and Territories have to vote Yes. AND2) A majority of States have to vote Yes.To achieve a majority of states four out of the six sates have to vote yes. For a State to vote yes over 50% of their voting population have to vote yes.

7 The First Peoples and the ConstitutionIn the lead up to Federation, Aboriginal and Torres Strait Islander peoples, or ‘the First Peoples’, were largely excluded from the writing of the Constitution.The result is that Australia adopted a Constitution that referred to Aboriginal and Torres Strait Islander peoples only in negative terms:Section 127 made it unlawful to include ‘Aboriginal natives’ when counting the total number of ‘people’ of the Commonwealth.Section 51(26) stated that the Federal Parliament can make special laws for ‘people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.Indigenous Australians were not involved in the writing of the Constitution.Indeed, the Australian Constitution was drafted at a time when it was believed that the Indigenous population would soon die out.The result is that Australia adopted a Constitution that referred to Aboriginal and Torres Strait Islander peoples only in negative terms:Section 127 made it unlawful to include ‘Aboriginal natives’ when counting the number of ‘people’ of the Commonwealth. This meant that Indigenous Australians were not officially counted in the Australian Census.Section 51(26) stated that the Federal Parliament can make ‘special laws for ‘people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. Under Section 51 of the Constitution the Federal Government did not have the power to make laws for Aboriginal and Torres Strait Islander peoples only the State and territory government had the power to make laws.

8 1967In 1967, a referendum was held on the status of the First Peoples in Australia.Australians voted overwhelmingly for:Section 127 to be removed from the Constitution, which meant that Aboriginal people and Torres Strait Islander people would now be included in estimating the total population of Australia; ANDSection 51(26) to be changed so that the Federal Government could now make laws for Aboriginal and Torres Strait Islander peoples.A Referendum relating to Indigenous Australians and the Constitution was held in 1967.It is the most successful Referendum to date.92% of the Australian voting population voted Yes and all Six States voted Yes.Australians voted overwhelmingly for;Section 127 to be removed from the Constitution, which meant that Indigenous Australians would now be counted in the census ANDSection 51 (26), more commonly known as the race power, to be changed so that the Federal Government could now make laws for Indigenous Australians.

9 However, the 1967 referendum did not go far enough"Our Constitution does not recognise the First Australians. In fact it enables governments to discriminate against under the 'race power.' The referendum of 1967, while it resulted in indigenous people being counted in the census and gave the Commonwealth the power to legislate on indigenous matters, did not give us recognition or equality."Professor Marcia LangtonA number of problems remain that still which need to be addressed, including:The Constitution does not recognise the prior occupation of Aboriginal and Torres Strait Islander peoples.The Constitution currently contains racially discriminatory provisions.The constitution remains silent on the history, rights and contributions of Aboriginal and Torres Strait Islander people.Although in Australia racial discrimination is no longer accepted in out daily lives, the Constitution still has racially discriminatory provisions. The 1967 referendum did not end racial discrimination.

10 Racially discriminatory provisionsSection 25 - This section contemplates state governments excluding people from voting on the basis of their ‘race’.Section 51 (26) - After the 1967 referendum this section allows the Parliament to make laws for the people of any race for whom it is deemed necessary to make special laws, including Indigenous Australians. However, this section does not specify that such‘special laws’have to be for the benefit of the people they affect.The racially Discriminatory provisions that are in the Constitution are;- Section 25- This section allows Australian states to deny Aboriginal and Torres Strait Islander peoples and other groups of people from voting on the basis of race. A right the states exercised for many decades. Though the states no longer exclude Aboriginal and Torres Strait Islander people from voting, the Constitution still contemplates the states’ right to do so.- After the 1967 referendum Section 51 (26), allows the Parliament to make laws for the people of any race for whom it is deemed necessary to make special laws, including Indigenous Australians. However this section does not specify that these ‘special laws’ have to be for the benefit of the people they affect. Under the Constitution the parliament can pass laws that discriminate on the basis of race. This section has been used to discriminate against Aboriginal and Torres Strait slander people.

11 The time has come for Australia to take the next step and recognise Aboriginal and Torres Strait Islander peoples in the Constitution and remove racial discrimination from our founding document.The Time has come for Australia to take the next Step and Recognise Aboriginal and Torres Strait Islander people in the Constitution.

12 Political SupportIn delivering the National Apology in 2008, Kevin Rudd committed to progressing constitutional recognition.In August 2010, the Australian Labor Party, the Coalition and Australian Greens election platforms all included a commitment to Constitutional Recognition.

13 Expert PanelIn November 2010 the Gillard Government established an Expert Panel on Constitutional Recognition of Indigenous Australians.The Expert Panel was made up of Aboriginal and Torres Strait Islander and non-Indigenous community leaders, lawyers and members of parliament.All major parties were represented, and the Panel included an Independent member.The Panel lead public consultations and debate all over Australia.In January 2012, the panel reported back to Parliament, with a number of recommendations..

14 What the Expert Panel RecommendedRepeal Section 25 which contemplates State governments excluding people from voting on the basis of race.Repeal Section 51(26) which can be used to create laws that are to the detriment of a particular ‘race’.Both powers described as “a blemish on our nationhood”.

15 What the Expert Panel RecommendedAdd a new Section 51A to recognise Aboriginal and Torres Strait Islander peoples, including their prior occupation, their continual relationship with the land, their continuing languages, cultures and heritage.This would preserve the Federal Government’s power to make laws with respect to Aboriginal and Torres Strait Islander peoples.Add a new Section 51A to recognise Aboriginal and Torres Strait Islander people, including their prior occupation, their continual relationship with the land, their continuing language , culture and heritage and to retain the Australian’s Government’s ability to pass laws to their benefit.

16 What the Expert Panel RecommendedAdd a new Section 116A that would prohibit racial discrimination on the basis of ‘race’, colour or ethnic or national origin; but still allow laws to protect cultures, languages and heritage or overcome disadvantage or effects of past discrimination.This new section would protect all Australians from racial discrimination.Add a new Section 116A that would prohibit racial discrimination on the basis of race, colour or ethnic or national origin; but still allow laws to protect cultures, languages and heritage or overcome disadvantage or problems caused by past discrimination.

17 What the Expert Panel RecommendedAdd a new Section 127A that recognises that Australia’s national language is English and that, as the original Australian languages, Aboriginal and Torres Strait Islander peoples’ languages are part of Australia’s heritage.

18 Why is Constitutional Recognition so important?Constitutional recognition offers an important opportunity to re-set the relationship between Aboriginal and Torres Strait Islander people and the wider Australian community.Australia was settled by the British under the principle of ‘terra nullius’, which allowed the British Government to act as if the land was uninhabited. This fallacy was not corrected at the time of Federation when our Australian Constitution was drafted.In 1997 the High Court, in the famous Mabo decision, acknowledged that the notion of ‘terra nullius’ was a fiction and had no place in the contemporary law of Australia. We now have the opportunity to amend the Constitution so that it reflects this by recognising prior occupation by the First Peoples of this land.

19 Why is Constitutional Change so important?Constitutional change would not only have powerful symbolic effects but also real practical effects.

20 Practical Effects of Constitutional ChangeResearch shows that Constitutional recognition would have a positive effect on Aboriginal and Torres Strait Islander peoples’ social and emotional wellbeing.

21 Recognition will improve the Health of Indigenous Australians“The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people… Recognition in the Constitution would have a positive effect on the self esteem of Indigenous Australians and reinforce their pride in the value of their culture and history. It would make a real difference to the lives of Indigenous Australians.”Dr Maria Tomasic, President of The Royal Australian and New Zealand College of PsychiatristsPositive Constitutional recognition is important for our nation’s social and emotional well being, as individuals, communities and as part of our national identity.“The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people……..... Recognition in the Constitution would have a positive effect on the self esteem of Indigenous Australians and reinforce their pride in the value of their culture and history. It would make a real difference to the lives of Indigenous Australians.”Dr Maria Tomasic, President of The Royal Australian and New Zealand College of Psychiatrists

22 Other Practical EffectsConstitutional Change will ensure that all Australians are treated equally under the law.Section 116A would protect all Australians from being discriminated against in law on the basis of race, colour or ethnicity. Racial equality is important for everyone.The introduction of Section 116A which would provide protection against discrimination on the basis of race, colour or ethnicity would protect all Australian’s from being discriminated against on the basis of race, colour or ethnicity - not just Aboriginal and Torres Strait Islander people.If Section 116A is adopted into the Constitution subsequent Governments would not be able to remove or amend it without another referendum and the will of the people.

23 Doesn’t the Racial Discrimination Act protect us from being discriminated against?Yes, the Racial Discrimination Act 1975 (Cth) protects individuals from being discriminated against on the basis of race.BUT unlike the Constitution the Racial Discrimination Act can be suspended or removed by the Government at any time.The Racial Discrimination Act 1975 (cth) protects individuals from being discriminated against on the basis of race.BUT the unlike the Constitution the Racial Discrimination Act can be suspended or removed by the Government.Aboriginal and Torres Strait Islanders people have be subject of the Racial Discrimination Act being suspended on three separate occasion. The most recent case was in relation to the Northern Territory Emergency Response.

24 Practical EffectsIt will prevent future Parliaments from making racially discriminatory laws to bar people from voting, working or joining certain professions on the basis of their race.

25 Practical EffectsIt will also ensure that the Government is able to make necessary laws to improve the lives of Aboriginal and Torres Strait Islander peoples by addressing disadvantage and protecting heritage and culture.The Government already has power to do this, but can also make discriminatory laws.These changes would limit the Government’s power to making non-discriminatory laws.

26 Common Myths and MisconceptionsMyth: Recognising Aboriginal and Torres Strait Islander people in the Constitution is based on outdated concepts of ‘race’ and inconsistent with the proposed racial equality clause.Fact: This is incorrect.Aboriginal and Torres Strait Islander people would not be recognised in the Constitution on the basis of their ‘race’ but rather because of their unique status as the original custodians of Australia.

27 Common Myths and MisconceptionsMyth: The Expert Panel has proposed that the Commonwealth Government be given a power to make ‘special laws’ to Aboriginal people. Won’t this mean that they will be preferential treatment?Fact: No.The Expert Panel has proposed that the Commonwealth Government be given a power to make ‘special laws’ to Aboriginal people. Won’t this mean that they will be preferential treatment?

28 Common Myths and MisconceptionsIt is important to clarify that the changes proposed will not create any new powers.Rather, they are designed simply to maintain the power which the Commonwealth Government currently has to make positive laws with respect to Aboriginal people, while removing the power to create negative or discriminatory laws.

29 Common Myths and MisconceptionsMyth: Isn’t the non-discrimination clause a one clause bill of rights?Fact: No, that would be like saying the Racial Discrimination Act is a one clause Human Rights Act. It is merely a one-clause non-discrimination principle.

30 Aren’t these two arguments completely inconsistent?”“You say that the current Constitution discriminates against Aboriginal and Torres Strait Islander peoples; but you also say that it doesn’t mention them at all.Aren’t these two arguments completely inconsistent?”FAQsYou say that the current Constitution discriminates against Aboriginal people but you also say that it doesn’t mention them at all. Aren’t these two arguments completely inconsistent?

31 The Constitution fails to acknowledge the prior occupation, unique languages, cultures and heritage of Aboriginal and Torres Strait Islander peoples. In this way, our founding document is incomplete.It also includes a number of provisions that are racially discriminatory. Whilst Aboriginal and Torres Strait Islander peoples are not named specifically in these provisions, it is clear from historical records that they were intended targets; and some provisions have only ever been used with respect to Aboriginal people and no others – for example, to preclude them from voting.

32 “Why should Aboriginal and Torres Strait Islander peoples receive benefits and entitlements that other Australians can’t access? There are lots of struggling white families in Australia. Shouldn’t the Commonwealth make laws for people on the basis of need, not ‘race’?”Why should Aboriginal people receive benefits and entitlements that other Australians can’t access? There are lots of struggling white families in Australia. Shouldn’t the Commonwealth make laws for people on the basis of need, not race?

33 The Commonwealth Government already has the power, for example under the Social Security head of power, to make laws on the basis of need and alleviate poverty and disadvantage for struggling Australians. The changes proposed will not make any change to those broader powers.The current changes are designed to ensure that the Commonwealth maintains the power it has had since the 1967 referendum to make positive laws with respect to Aboriginal and Torres Strait Islander peoples; ANDSeek to remove the Australian Government’s power to make discriminatory laws and bring the Constitution in line with contemporary standards.The Commonwealth Government already has power, for example under the Social Security head of power, to make laws on the basis of need and alleviate poverty and disadvantage for struggling Australians. The changes proposed will not make any change to those broader powers.The current changes are designed to ensure that the Commonwealth maintains the power it has had since the 1967 referendum to make positive laws with respect to Aboriginal people.AND seeks to remove the Government’s power to make discriminatory laws and bring the Constitution in line with contemporary standards.

34 “Referenda cost a lot of taxpayer money, and few succeed“Referenda cost a lot of taxpayer money, and few succeed. Wouldn’t we be better off investing this money to address Aboriginal and Torres Strait Islander disadvantage?”

35 Recognition and addressing disadvantage are not mutually exclusive priorities. Indeed, experience shows that improving relationships is vital to improving outcomes in Aboriginal and Torres Strait Islander communities.Recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution is a crucial step in resetting the relationship between governments, the broader community and the First Australians.It is also likely to generate direct Aboriginal and Torres Strait Islander health and social and emotional well-being improvements.

36 What do Australians think about Constitutional Change?Q. Thinking now about Indigenous Australians. If there was to be a referendum to recognise Indigenous Australians in the Australian constitution, based on what you know now would you vote in favour of it or against it?Results of the Newspoll survey conducted in February 2011ResponsePer CentIn favour75Against16Don’t Know975% are In Favour, 16% are Against and 9% Don’t Know.SOURCE -

37 What do Indigenous Australians think about Constitutional Change?The National Congress of Australia’s First People surveyed their Aboriginal and Torres Strait Islander members on Constitutional change.Of 466 respondents surveyed:88.6% selected ‘very important’ to describe how they felt about the need for changeA further 6.7% said that recognition was ‘somewhat important’.Source:

38 What are Aboriginal leaders saying?“Constitutional recognition of Aboriginal and Torres Strait Islander People would be good ''not only for our own heads and hearts… but also for the nation's soul.’’SOURCE -Dr Lowitja O’Donoghue, former Chairperson of the Council for Aboriginal Reconciliation

39 What are Aboriginal leaders saying?“We're gathered to take a remarkable step forward. Forward to a nation that acknowledges its history, its heritage, in its founding document. Forward to a nation who stands up to be counted as opponents of racism and proponents of recognition.”SOURCE -Professor Patrick Dodson, Co-Chair of the Expert Panel on Constitutional Recognition

40 What are Aboriginal leaders saying“ We must, I believe, leave our children with a formal acknowledgement in our Constitution of the existence of the Aboriginal and Torres Strait Islander peoples, one that goes beyond the racialised citizen and encompasses the explicit rights of peoples within our nation state.”Marcia Langton“ We must, I believe, leave our children with a formal acknowledgement in our Constitution of the existence of the Aboriginal and Torres Strait Islander peoples, one that goes beyond the racialised citizen and encompasses the explicit rights of peoples within our nation state.”SOURCE -Professor Marcia Langton, Chair of Australian Indigenous Studies, University of Melbourne

41 What are Aboriginal leaders sayingNoel Pearson, lawyer, academic, land rights activist and founder of the Cape York Institute for Policy and Leadership"What is still needed is a positive citizenship for indigenous Australians: a positive recognition of our status as the country's indigenous peoples and yet sharing a common citizenship with all other Australians."SOURCE -

42 What Aboriginal leaders are saying“Constitutional reform is more than just symbolism. The positive effect on our self-esteem, the value of our culture and history, and the respect it marshals from others can make real differences to the lives of indigenous Australians everywhere.”Mick Gooda“Constitutional reform is more than just symbolism. The positive effect on our self-esteem, the value of our culture and history, and the respect it marshals from others can make real differences to the lives of indigenous Australians everywhere."SOURCE -Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner

43 Be part of the changeGet informed. Go to:Ask if you can put up a poster in your workplace, neighbourhood centre, school, library, university, local cafe or public place. To order a free poster, go to or contactOrganise an event in your home, workplace, school, university, TAFE or community centre. See ANTaR’s ‘Event Hints and Tips’.Circulate ANTaR’s petition calling on Federal politicians to support changes to recognise Aboriginal and Torres Strait Islander peoples in the Constitution and protect all Australians from racial discrimination. Go toMake a financial contribution to ANTaR’s campaign for Constitutional Recognition.Tweet the Prime Minister and tell her you stand for #ConstitutionalRecognition.Volunteer your time at ANTaR’s campaign HQ. Fill out our campaign supporter registration.